ART 1 - COOPERATIVE ENTERPRISE (DO NOT DELETE) 10/22/2019 4:02 PM Articles Cooperative Enterprise as an Antimonopoly Strategy Sandeep Vaheesan* & Nathan Schneider† ABSTRACT After decades of neglect, antitrust is once again a topic of public debate. Proponents of reviving antitrust have called for abandoning the narrow consumer welfare objective and embracing a broader set of objectives. One essential element that has been overlooked thus far is the ownership structure of the firm itself. The dominant model of investor- owned business and associated philosophy of shareholder wealth maximization exacerbate the pernicious effects of market power. In contrast, cooperative ownership models can mitigate the effects of monopoly and oligopoly, as well as advance the interests of consumers, workers, small business owners, and citizens. The promotion of fair competition among large firms should be paired with support for democratic cooperation within firms. Antitrust law has had a complicated history and relationship with cooperative enterprise. Corporations threatened by cooperatives have used the antitrust laws to frustrate the growth of these alternative businesses. To *Legal Director, Open Markets Institute. †Assistant Professor, Department of Media Studies, University of Colorado Boulder. The authors thank Lauren Bridges, Michelle Meagher, Sanjukta Paul, and Ganesh Sitaraman for thoughtful feedback on earlier drafts of this Article. 1 ART 1 - COOPERATIVE ENTERPRISE (DO NOT DELETE) 10/22/2019 4:02 PM 2 PENN STATE LAW REVIEW [Vol. 124:1 insulate cooperatives from the antitrust threat, Congress has enacted exemptions to protect cooperative entities, notably a general immunity for farm cooperatives in the 1922 Capper-Volstead Act. As part of an agenda to tame corporate monopoly, all three branches of the federal government and the states should revisit these ideas and seek to protect and enable the cooperative model across the economy. Although protections that farmers fought for a century ago may seem obsolete in an era of big-box retail and online platforms, matters of ownership design have at least as much relevance today and should be a part of the antimonopoly arsenal. Table of Contents I.INTRODUCTION ................................................................................................... 3 II.THE RELEVANCE OF OWNERSHIP DESIGN ......................................................... 5 A. Harms to Consumers ........................................................................ 9 B. Harms to Fair Competition............................................................. 11 C. Harms to Workers .......................................................................... 12 D. Harms to Society ............................................................................ 14 E. Appetite for Alternatives ................................................................ 15 III.COOPERATIVE ADVANTAGES ......................................................................... 16 A. Economies of Scale with Less Need for Conglomeration .............. 21 B. Worker Independence with Less Vulnerability .............................. 22 C. Self-governance with Less Risk of Public Harm ........................... 23 D. Network Effects with Less Need for Centralization ...................... 25 IV.ANTITRUST LAW AND THE COOPERATIVE FORM ........................................... 26 A. Co-op Accommodations in Antitrust Law ..................................... 28 1. Protection for Agricultural Cooperatives ................................. 28 2. Partial Antitrust Exemption for Collective Action by Workers .................................................................................... 31 B. How Current Antitrust Doctrine Impedes Certain Cooperative Forms and Not Others .................................................................... 33 1. Bargaining Cooperatives .......................................................... 34 2. Production, Distribution, and Retail Cooperatives ................... 36 V.HOW THE FEDERAL GOVERNMENT AND STATES CAN PROTECT AND ENCOURAGE THE GROWTH OF COOPERATIVE BUSINESSES ..................... 39 A. Congress: Expand and Refine Capper-Volstead Exemption to Cover Cooperatives Outside Agriculture ....................................... 41 B. Courts: Synthesize Existing Antitrust Doctrines to Promote Growth of Democratically Accountable Cooperatives................... 46 C. Federal Antitrust Agencies: Draw a Distinction Between Joint Action Among Relatively Powerless Actors and Corporate Collusion ........................................................................................ 48 D. States: Authorize and Actively Supervise Cooperatives ................ 51 VI.CONCLUSION ................................................................................................. 53 ART 1 - COOPERATIVE ENTERPRISE (DO NOT DELETE) 10/22/2019 4:02 PM 2019] COOPERATIVE ENTERPRISE AS AN ANTIMONOPOLY STRATEGY 3 I. INTRODUCTION Antitrust is back. In the words of former Acting Assistant Attorney General Renata Hesse, “It is, as it was at its inception, the stuff of popular imagination.”1 This legal and policy regime, which has been in retreat for as long as many of us can remember,2 has regained some of the spirit and urgency that led to its early development3—if not yet the legislative ingenuity or political will. Democratic Party politicians are taking notice: Senator Elizabeth Warren, at first,4 and, subsequently, party leaders whose 2017 “A Better Deal” document called for “cracking down on corporate monopolies.”5 This mood has even taken hold among some Republicans, especially the populist wing emboldened by the presidency of Donald Trump.6 For example, the Trump administration broke with recent practice when it attempted to block the proposed vertical merger of AT&T and Time Warner.7 From different points of view and for different reasons, 1. Renata Hesse, Acting Assistant Att’y Gen., U.S. Dep’t of Justice Opening Remarks at 2016 Global Antitrust Enforcement Symposium: And Never the Twain Shall Meet? Connecting Popular and Professional Visions for Antitrust Enforcement (Sept. 20, 2016), available at https://bit.ly/2dwx2qV. 2. By way of example, the Department of Justice has filed only one monopolization suit in the past 20 years. Antitrust Div. Workload Stats. FY 2009 – 2018, http://bit.ly/2ZYz0Vr; Antitrust Div. Workload Stats. FY 2000 – 2009, http://bit.ly/2KNGHY6. For a review of antitrust law’s historical development and changing objectives and rules, see generally Sandeep Vaheesan, The Evolving Populisms of Antitrust, 93 NEB. L. REV. 370 (2014). The prevailing consumer welfare model is neither consistent with the original motivations of antitrust law nor adequate to address emerging concentrations of economic and political power. See John J. Flynn, The Reagan Administration’s Antitrust Policy, Original Intent, and the Legislative History of the Sherman Act, 33 ANTITRUST BULL. 259, 303 (1988). 3. For instance, Lina Khan published a widely circulated Yale Law Journal note on the clout of Amazon and contemporary antitrust law’s blindness to its power. See generally Lina Khan, Amazon’s Antitrust Paradox, 126 YALE L. J. 56 (2017). 4. Mario Trujillo, Warren Targets Amazon, Apple, Google in Anti-Monopoly Speech, THE HILL (June 29, 2016, 1:12 PM), https://bit.ly/2JQt3FB. 5.A Better Deal, SENATE DEMOCRATS, https://bit.ly/2MosdlG (last visited June 1, 2019). 6. Former Trump campaign CEO and senior counselor, Steve Bannon, reportedly believes major online platforms like Facebook and Google should be regarded as monopolistic utilities. See Ryan Grim, Steve Bannon Wants Facebook and Google Regulated Like Utilities, THE INTERCEPT (July 27, 2017, 9:31 AM), https://bit.ly/2tH31c8. That said, Bannon’s and the Trump administration’s support for antimonopoly policy should be treated with deep skepticism. While supporting public utility regulation for tech platforms, Bannon also seeks the “deconstruction of the administrative state”—the same administrative that would regulate entities like Facebook and Google. See Jon Michaels, How Trump Is Dismantling a Pillar of the American State, THE GUARDIAN (Nov. 7, 2017, 8:36 AM), https://bit.ly/2iDkiyQ. 7. Steven Overly & Josh Gerstein, Trump Administration Sues to Block AT&T-Time Warner Merger, POLITICO (Nov. 20, 2017, 8:59 PM), https://politi.co/2zUHbYU. United States v. AT&T, Inc., 916 F.3d 1029, 1047 (D.C. Cir. 2019) (affirming district court’s denial of government’s request for preliminary injunction against the merger). The Obama administration, in contrast, permitted large vertical consolidations to proceed on the ART 1 - COOPERATIVE ENTERPRISE (DO NOT DELETE) 10/22/2019 4:02 PM 4 PENN STATE LAW REVIEW [Vol. 124:1 many politicians and public figures are coming to agree with the assessment of Nobel-laureate economist Joseph Stiglitz: “America has a monopoly problem—and it’s huge.”8 With this renewed interest in antitrust, citizens, legislators, and regulators should consider a full range of ideas and strategies to address the economic and political power of large corporations. This Article reconsiders one little-discussed component of the antimonopoly tradition in the United States and argues for its renewed relevance to help resolve the challenges of the present—cooperative enterprise. In addition to the structure of markets, citizens and lawmakers recognized a century ago that the structure of the firm itself has important economic, political, and social ramifications. The architects